E7-11016. Additional Corrections to the Rule That Implemented the New Formula for Calculating Computer Performance: Adjusted Peak Performance (APP) in Weighted TeraFLOPS

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule; correction.

SUMMARY:

This rule makes changes to regulations implementing the new formula for calculating computer Adjusted Peak Performance in Weighted TeraFLOPS. This rule corrects the availability of the license exception for technology and software under restriction for specified “software” and “technology” for computers. These additional changes are intended to correct the scope of the license exception in certain Export Control Classification Numbers that were unintentionally narrowed by the rule published on March 22, 2007. In addition, this rule corrects a reference to a nonexistent Export Control Classification Number found in specified “technology” for computers.

DATES:

This rule is effective June 7, 2007.

ADDRESSES:

Although this is a final rule, comments are welcome and should be sent to [e-mail], fax [phone], or to Regulatory Policy Division, Bureau of Industry and Security, Room H2705, U.S. Department of Commerce, Washington, DC 20230. Please refer to regulatory identification number (RIN) 0694-AE03 in all comments, and in the subject line of e-mail comments. Comments on the collection of information should be sent to David Rostker, Office of Management and Budget (OMB), by e-mail to [e-mail], or by fax to [phone].

FOR FURTHER INFORMATION CONTACT:

Joseph Young, Information Technology Controls Division, by telephone at 202-482-4197 or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

The Bureau of Industry and Security (BIS) published a final rule on April 24, 2006 (71 FR 20876) that implemented the new formula for calculating computer Adjusted Peak Performance (APP) in Weighted TeraFLOPS (WT). Subsequently, BIS published a final rule on March 22, 2007 (72 FR 13440) that corrected the April 24, 2006 final rule, by removing certain references to Missile Technology controls and adjusting the scope of controls and license exceptions in certain Export Control Classification Numbers (ECCNs).

In adjusting the scope and license exceptions in certain ECCNs, the March 22, 2007 final rule unintentionally narrowed the scope of the license exception for technology and software under restriction (License Exception TSR) for ECCNs 4D001 (specified “software”) and 4E001 (specified “technology”). That correction rule inserted language in ECCN 4D001 that limited the use of License Exception TSR to software described in 4D001.b that meets the requisite APP parameter. Likewise, that correction rule inserted language in ECCN 4E001 that limited the use of License Exception TSR to technology described in 4E001.b that meets the requisite APP parameter.

To properly correct the scope of License Exception TSR, as intended by the original April 24, 2006 final rule, this rule changes the text of License Exception TSR for ECCN 4D001 to read: “Yes, except for ‘software' for the ‘development' or ‘production' of commodities with an ‘Adjusted Peak Performance' (‘APP') exceeding 0.1 WT.” Similarly, this rule changes the text of License Exception TSR for ECCN 4E001 to read: “Yes, except for ‘technology' for the ‘development' or ‘production' of commodities with an ‘Adjusted Peak Performance' (‘APP') exceeding 0.1 WT.”

Moreover, this rule makes an additional correction to a reference made in the List of Items Controlled section for ECCN 4E001. Specifically, 4E001.a refers to ECCN 4A993. Currently, ECCN 4A993 does not exist in the Commerce Control List. Therefore, this rule removes the reference to “4A993” in 4E001.a.

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 3, 2006, 71 FR 44551 (August 7, 2006), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.

Rulemaking Requirements

1. This final rule has been determined to be not significant for purposes of E.O. 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule involves a collection of information subject to the requirements of the PRA. This collection has previously been approved by OMB under control number 0694-0088 (Multi-Purpose Application), which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. BIS expects that this rule will not change that burden hour estimate.

3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Steven Emme, Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044.

List of Subjects in 15 CFR Part 774

• Exports
• Reporting and recordkeeping requirements

Accordingly, part 774 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

PART 774—[AMENDED]

1. The authority citation for 15 CFR part 774 continues to read as follows:

Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 18 U.S.C. 2510 et seq.; 22 U.S.C. 287c, 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006).

Supplement No. 1 to Part 774 [Amended]

2. In Supplement No. 1 to part 774 (the Commerce Control List), Category 4—Computers, Export Control Classification Number (ECCN) 4D001 is amended by revising the License Exceptions section, to read as follows:

4D001 Specified “Software”, See List of Items Controlled

* * * * *

License Exceptions

CIV: N/A

TSR: Yes, except for “software” for the “development” or “production” of commodities with an “Adjusted Peak Performance” (“APP”) exceeding 0.1 WT.

APP: Yes to specific countries (see § 740.7 of the EAR for eligibility criteria).

* * * * *

3. In Supplement No. 1 to part 774 (the Commerce Control List), Category 4—Computers, Export Control Classification Number (ECCN) 4E001, is amended:

a. By revising the License Exceptions section as set forth below;

b. By revising paragraph (a) in the “Items” paragraph of the List of Items Controlled section, as follows:

4E001 Specified “Technology”, See List of Items Controlled

* * * * *

License Exceptions

CIV: N/A

TSR: Yes, except for “technology” for the “development” or “production” of commodities with an “Adjusted Peak Performance” (“APP”) exceeding 0.1 WT.

APP: Yes to specific countries (see § 740.7 of the EAR for eligibility criteria).

List of Items Controlled

Unit: * * *

Related Controls: * * *

Related Definitions: * * *

Items:

a. “Technology” according to the General Technology Note, for the “development”, “production”, or “use” of equipment or “software” controlled by 4A (except 4A980 or 4A994) or 4D (except 4D980, 4D993, 4D994).

* * * * *

Dated: June 1, 2007.

Eileen M. Albanese,

Director, Office of Exporter Services.